[2023] KEHC 25151 (KLR)

Mwiandi v Meru South Farmers Co-operative Society (Civil Appeal E034 of 2022) [2023] KEHC 25151 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25151 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E034 of 2022

LW Gitari, J

November 8, 2023

Between

Onesmus Njagi Mwiandi

Applicant

and

Meru South Farmers Co-Operative Society

Respondent

Ruling

1. Before this Court is the Notice of Motion dated 30th June, 2023 and filed on 3rd July, 2023. The Appellant/Applicant is seeking for the following orders:a.That this Hoonourable Court be pleased to order that this appeal be transferred to the Employment and Labour Relations Court at Meru for hearing and determination.b.That the costs of this Application be in the cause.

2. The Application is supported by the affidavit of Muthomi Njeru, an advocate of the High Court of Kenya and having conduct of this matter on behalf of the Appellant. It is deponed on behalf of the Appellant/Applicant That:a.The Appellant herein was an employee of the Respondent whereof he filed Chuka Civil Case No 70 of 2004 which was heard and determined on 11th March, 2009. b.The Respondent herein filed an application dated 14th February, 2022 seeking inter alia that the interest be computed at 6% per annum.c.The application was determined on 9th November, 2022. d.The Appellant being dissatisfied with the said ruling preferred this appeal before this Honourable Court.e.By dint of Article 162(a) of the Constitution, this Court has no jurisdiction to entertain the appeal as the matters herein relate to Employment and Labour Relations Court.f.This appeal was by inadvertent mistake filed before this Court.g.The Appellant seeks to have the same transferred to the right Court, that is, the Employment and Labour Relations Court for hearing and determination.h.No prejudice shall be suffered by the Respondent if the order sought is granted.i.It is in the interest of justice that this Application be allowed.

3. The Application is opposed by the Respondent who filed a Replying Affidavit sworn on 11th July, 2023 by Hillary Sandi, also an advocate of the High Court of Kenya. The said advocate deponed, inter alia, That:a.The advocate for the Appellant is on record admitting that there was a mistake in filing this appeal, which mistake should not be visited upon the Respondent who already incurred cost due to the Appellant’s advocate’s mistake.b.From the onset, the Court lacks jurisdiction and thus by dint of that fact alone, this Application ought to fail.c.The appeal was filed by the Appellant’s own motion guided and advised by his advocate who is on record.d.The Respondent proceeded to appoint the firm of Hillary Sandi & Co. Advocates to come on record.e.The Respondent proceeded to pay the requisite advocate’s instructions fee as per the Advocates Remuneration Order.f.At the lower court, this matter alongside a series of others, were consolidated to have one lead file since they have similar facts and issues.g.The Respondent has already incurred cost in giving instruction to the advocate on record and in any event, ought to be compensated because the error is not on his part but that of the Appellant and his advocate on record.h.Transferring the appeal to the employment court amounts to commencing litigation afresh and thus leading to the Respondent incurring more cost in paying advocates instruction fee.i.This is a delaying tactic that is improvised by the Applicant where he doesn’t want the Respondent to enjoy the fruits of the lower court’s judgment.

Issue for Determination 4. It is clear from the foregoing pleadings that the main issue for determination in the Application before this Court is whether or not the appeal herein should be transferred to the Employment and Labour Relations Court at Meru.

Analysis 5. The instant Application is expressed to have been brought under the provisions of Section 18(1)(b)(ii) of the Civil Procedure Act (Cap 21 of the Laws of Kenya) and Order 51, Rule of the Civil Procedure Rules.

6. Section 18(1) of the Civil Procedure Act provides as follows:“(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

7. The Employment and Labour Relations Court (ELRC) is established under Article 162 (2) (a) of the Constitution of Kenya (2010). The Court is operationalised under the Employment and Labour Relations Court Act No 20 of 2011 and it is a specialised court with the status of the High Court.

8. In this case, the Appellant’s claim is purely an employment matter and this Court has been invited to find that it does not have jurisdiction to hear the matter and, therefore, to transfer the suit to the Employment and Labour Court at Meru.

9. Counsel for the Applicant has relied on the High Court decision in Pamoja Women Development Programme & 3 others v Jackson Kihumbu Wangombe & another [2016] eKLR, where the Court (Prof. Joel Ngugi, J) admirably considered the issue whether the High Court can transfer a suit to the Environment and Land Court, and held as follows:“10. The parties did not cite to me any authorities to support their respective positions. However, I am aware of some decisions of the High Court that have held that much as sections 1A and 1B of the Civil Procedure Act has softened the rigidity of the Kagenyi Case stranglehold, the High Court cannot transfer suits to Equal Status Courts. Three such cases include: Rob De Jong & Another v Charles Mureithi Wachira [2012] eKLR, Joseph Mururi v Godfrey Gikundi Anjuri [2012] eKLR and Wycliffe Mwangaza Kihugwa v Grainbulk Handlers Limited [2014] eKLR.11. It is true that my perspective on the question of when the High Court can order a transfer of a suit filed in the “wrong” court has evolved. In 2012, in a case filed in Machakos, I took the hard-line position – following Kagenyi Case – that a suit filed in the “wrong” magistrates’ court could not be saved and had to be struck out. That was a case that implicated section 18 of the CPA. More recently, in Esther Mugure Karegi v Penta Tancom Ltd (Kiambu Civil Misc App No 19 of 2016, my attitude evolved and ordered the transfer of such a suit. One of the reason for the evolution in my thinking is the shift in our jurisprudence towards more functional as opposed to formalist approach to questions of jurisdiction. I explained this evolution in the Esther Mugure Karegi Case thus:I would agree that the liberating light of the provisions of Article 159(2) of the Constitution interpreted liberally and generously would inform our interpretation of sections 14, 15 and 18 of the Civil Procedure Act. To my mind, freeing the interpretation from the constraints of technicality and eager to do substantive justice would lead to a conclusion that sections 14 and 15 are procedural sections aimed at guiding parties on the appropriate place for suing. Suing in the “wrong” court as far as geographical location is concerned does not, however, necessarily make the suit a “nullity.” Such a suit may be a suitable candidate for transfer under section 18 of the Civil Procedure Act to the appropriate Court. It is important to point out, however, even under this liberal interpretation not all suits will be automatically transferred. Among other things, in my view, the High Court will consider the reasons for filing the suit in the “wrong” court in the first place. Where there is evidence of bad faith or improper motives, for example, the Court may refuse to transfer such a suit and leaving it to endure objections under section 16 of the Civil Procedure Act.12. The question for me, therefore, is whether I should follow these High Court decisions or take a different stance since I am not aware of any decision by the Court of Appeal directly on the issue and the parties before me did not cite any.13. I begin with two background questions: what was the intention of Kenyans in creating the two Article 162(2) Courts? Second, if section 18 of the Civil Procedure Act was being written now, how would it read? I make the preliminary point that section 18 of the CPA neither permits nor prohibits the High Court to transfer suits to the Equal Status Courts. Therefore, one can only rely on the section by analogy.14. Kenyans desired specialised courts to deal with certain matters that they felt should be dealt with by these courts with special expertise and repeated experience in the questions they deal with. What Kenyans bargained for, and got in constitutionalizing the two Article 162(2) courts are the benefits associated with the creation of specialized courts in environment and law (as well as employment relations and labour): improved substantive decision making in the two areas fostered by having experts decide complex cases in the two areas and improving judicial efficiency through decreasing the judicial time it takes to process complex cases by having legal and subject-matter experts with repeated experience on the subject-matter adjudicate them. These were the advantages Kenyans bargained for in creating Article 162(2) Equal Status Courts.15. Kenyans’ objectives was not to set up judicial booby traps for unsuspecting litigants who after timeously filing and pleading their cases would have to undergo a technical game of jurisdictional Russian Roulette to determine if their case will survive or be struck out. While Kenyans did not wish to give litigants a blank cheque to file suits in the wrong fora in bad faith, they intended to give parties a fair chance to have their cases determined on their merits. This intention is defeated if, in close cases filed in a Court of cognate jurisdiction but where the parties subsequently or the Court makes a determination that the particular Court in which the matter has been filed does not have the requisite jurisdiction and that the requisite jurisdiction lies in a cognate court, the Court responds by striking out the suit and requiring the parties to file a fresh the suit. I see no useful purpose that is served by this other than punishing a party that acted in good faith. This would be an appropriate course of action where it can be shown that the Plaintiff acted in bad faith in suing in the wrong court but not where the Plaintiff acted in good faith. There has been no allegation or showing that the Plaintiff acted in bad faith here. Indeed, it is the Court and the Defendants who raised the issue for the first time and upon reflection the Plaintiff concluded that jurisdiction probably lies in the Environment and Land Court. They then, without any delay, made the current application.16. I agree there is no substantive concurrent jurisdiction shared between the High Court of Kenya and the two Article 162(2) Equal Status Courts. Indeed our Constitution advertently aimed to isolate the jurisdiction of the Equal Status Courts and prohibit the High Court from exercising jurisdiction in areas of specialisation of these Courts. However, I believe the constitutional architecture provides for incidental concurrent jurisdiction. For example, there is no longer any serious questions that the two Equal Status Courts have case-wide jurisdiction to hear and determine any additional other issues raised or pleaded in a case which is primarily on their area of specialisation even if those issues normally fall outside their jurisdiction. This is the reason Equal Status Courts can deal with any issues raised respecting the violation of the Bill of Rights for example.17. In my view, this incidental concurrent jurisdiction includes the ability of both the High Court and the Equal Status Courts to deal with certain procedural or administrative questions that present quasi-judicial issues where the Court in question is requested to act in the interests of justice or due administration of justice. This is where I would locate the ability of any of the three superior courts of cognate jurisdiction to transfer to the counterpart superior court any case filed before it that would more appropriately be adjudicated in the cognate superior court. Under this incidental concurrent jurisdiction, the High Court was able, for example, to transfer certain matters to the Environment and Land Court and the Environment and Labour Relations Court initially.18. It is, of course, quite possible to abuse and misuse this incidental concurrent jurisdiction. Hence, it must be exercised with caution and always with the conscious reminder that every Court must beware that jurisdiction is bequeathed by the People of Kenya and as such it is usurpation of the Constitution to aggrandize the Court’s jurisdiction using judge-craft or innovation.19. At the same time, however, Courts must act to give our Constitution meaning and life that is keeping with the lived realities of Kenyans. To paraphrase a famous American legal aphorism which found its orality in the stirring dissent of Justice Robert H. Jackson in Terminiello v City of Chicago, 337 US 1 (1949), our Constitution is not a suicide pact. Like Justice Jackson in expressing apprehension that a rigid and dogmatic reading of the US Bill of Rights might destroy the very society it was meant to govern, we must worry here that an ultra-formalistic reading of the constitutional bequests of jurisdictions to various Courts could easily lead to much substantive injustice and a return to mechanical jurisprudence that Kenyans loathed in the pre-2010 period of our constitutional adjudication. We must, to paraphrase Justice Jackson again, temper doctrinaire logic on the jurisdiction issue with a little practical wisdom.20. For me, that practical wisdom which we must bring to the strident doctrinaire logic that seemingly flows from Article 162(2) is one that permits the High Court in circumstances and context such as the one in this case to transfer it to the Environment and Land Court where primary jurisdiction lies. I believe that there is no constitutional subversion in the act of channeling the suit to the rightful Court. If anything, this furthers access to justice and eschews the use of technicalities as the golden pivot for adjudicating disputes. I find no categorical bar in the Constitution to this form of redemptive jurisprudence to prevent substantive injustice.21. As stated above, I would readily accept that section 18 of the Civil Procedure Act does not apply to transfer of cases from the High Court to Equal Status Courts and vice versa. However, that does not, in my view, settle the matter. The High Court is still vested with inherent authority and inherent (incidental) jurisdiction to transfer certain suits which have been filed in good faith in the High Court to Equal Status Courts even in the absence of a specific statutory text bequeathing such powers to the High Court. This is in keeping with the Constitutional commandment to do substantive justice without undue obsession with technicalities.22. Consequently, I would exercise the inherent jurisdiction of the Court to allow the present application. However, while I have held that there is no evidence of bad faith on the part of the Plaintiffs in filing the matter in the High Court, it is also true that the Defendants have been inconvenienced and have been forced to incur extra costs for having to entertain the present application due to the action by Plaintiffs in filing the matter in the High Court. It is, therefore, only fair that the Defendants should be compensated for their costs for this Application.”

11. I am persuaded by the above authority as it has analyses the issue properly. It is my view that with regard to the overriding objective of the Civil Procedure Act is provided under Section 1A &1B of the Act and to the principle of substantial justice encapsulated under the provision of Article 159 of the Constitution of Kenya, the proper course to take in this case is to transfer the matter to the correct court so as to avoid expensive delays in the substantive determination of dispute.

Conclusion 12. In view of all the foregoing, and having considered rival submissions presented by counsels for both parties herein, it is my opinion that the appeal herein ought to have been filed in the Employment and Labour Relations Court at Meru. Consequently, I opine that the Notice of Motion Application dated 30th June, 2023 ought to be allowed in terms of prayer no 1 in the Application.

13. As for the prayer for costs, it is my view that since the Respondents have been inconvenienced and have been forced to incur extra costs for having to entertain the present appeal and application due to the action of the Applicant in wrongly filing this matter before this Court, it is only just that the Respondent should be compensated for the costs of the instant Application and the appeal.In the circumstances I award the costs to the respondent. I order that this appeal shall be transferred to the Employment and Labour Relations Court at Meru.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 8TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE